The State of Pharma Class Certification After Asacol
Law360, December 18, 2018
How should courts approach class certification in antitrust cases involving pharmaceuticals when the class contains uninjured members? The answer to that question has evolved rapidly since the US Court of Appeals for the First Circuit decided In re: Nexium Antitrust Litigation in 2015, a case which upheld certification of such a class. Three years later, the same court decided In re: Asacol Antitrust Litigation, which disallowed certification of another such class.
In “The State Of Pharma Class Certification After Asacol,” published on Law360, Analysis Group Managing Principals Aaron Yeater and Stephen Fink and Vice President Pavel Darling explore this changing landscape and discuss factors that may influence its further development. The authors review the issues that were critical to the Nexium and Asacol decisions and focus on uninjured class members and their identification – in particular, those that were brand-loyal, a factor that may be especially relevant in future litigation. “Going forward,” the authors write, “defendants may place additional emphasis on articulating the reasons why some class members are uninjured — in particular, those that may result in similar issues regarding the feasibility of identifying such class members — in order to lay the groundwork for potential objections they will make.”